Citation Nr: 0825977
Decision Date: 08/01/08 Archive Date: 08/13/08
DOCKET NO. 04-03 836 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to increased evaluations for multilevel lumbar
spondylosis, status post L4-S1 spinal stabilization with
fusion and right lower extremity radiculopathy, initially
evaluated as 10 percent disabling from April 25, 1995 until
September 7, 1999 and from December 1, 1999 until January 23,
2007, and as 40 percent disabling beginning on January 23,
2007.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
A. C. Mackenzie, Counsel
INTRODUCTION
The veteran served on active duty from February 1954 to
February 1956.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 2002 rating decision issued
by the Department of Veterans Affairs (VA) Regional Office
(RO) in St. Petersburg, Florida.
The Board remanded this case in June 2006. At the time of
the prior remand, the veteran had been assigned a 10 percent
evaluation for the entire pendency of this appeal following
the grant of service connection in April 25, 1995, except for
a period from September 7 until December 1 of 1999 when a
temporary 100 percent evaluation under 38 C.F.R. § 4.30 was
assigned following lumbosacral spine surgery. In a March
2008 rating decision, the veteran's evaluation was increased
to 40 percent, effective from January 23, 2007. Both the
prior 10 percent evaluation and the current 40 percent
evaluation represent less than the maximum available and
remain at issue on appeal. See AB v. Brown, 6 Vet. App. 35,
38 (1993).
The Board also notes that disposition of this case has
followed a grant of a motion in July 2008 to advance this
appeal on the Board's docket pursuant to the provisions of
38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c)
(2007).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required.
REMAND
In July 2008, the veteran sent the AMC a VA medical record
dated in July 2008. The veteran, however, also requested in
an attached statement that VA obtain records of treatment
from his orthopedic doctor at the Daytona Beach, Florida VA
Outpatient Clinic (VAOPC) for the period from January 2007 to
the present. Additionally, the veteran informed VA that he
was participating approximately monthly in a pain management
program encompassing "injections" at the Gainesville,
Florida VA Medical Center (VAMC) and that he wanted VA to
request those records as well. The veteran described the
frequency but not the exact dates of the pain management
program treatment. The AMC forwarded this new statement and
the attached evidence to the Board in the same month. The
Board observes that the claims file contains no VA outpatient
records dated from January 2007 onwards, other than the one
medical record provided by the veteran in July 2008.
As VA's duty to assist the veteran in the development of
evidence to substantiate a claim includes obtaining records
of VA medical treatment, this case must be remanded so that
sufficient efforts can be made to obtain records
corresponding to the veteran's reported treatment for his
lumbosacral spine disorder. 38 C.F.R. § 3.159(c)(2); see
also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).
Additionally, in a March 2008 Supplemental Statement of the
Case, the AMC notified the veteran that an addendum to the VA
examination report was being requested. The AMC noted that
this addendum would include the examiner's opinion as to
whether there was unfavorable ankylosis of the entire
thoracolumbar spine or unfavorable ankylosis of the entire
spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242.
To date, however, it does not appear that the AMC has
followed through with obtaining this addendum.
The Board regrets any delay resulting from additional
evidentiary development, but in this instance this
development results in part from additional information, and
indeed a request for additional development, from the veteran
himself. Accordingly, the case is REMANDED for the following
action:
1. All records of (i) medical treatment
from the Daytona Beach VAOPC dated from
January 2007 to the present time and (ii)
the veteran's pain management program at
the Gainesville VAMC should be requested.
All records obtained pursuant to this
request must be included in the veteran's
claims file. If the search for such
records has negative results,
documentation to that effect should be
included in the claims file.
2. The examiner who conducted the
January 2007 VA examination (or another
medical professional, if the examiner is
unavailable) should review the claims
file, including the January 2007
examination report, and provide an
opinion as to the whether there was
unfavorable ankylosis of the entire
thoracolumbar spine or unfavorable
ankylosis of the entire spine. This
addendum must be included with the claims
file.
3. After completion of the above
development, the veteran's appeal should
be readjudicated. If the determination
remains less than fully favorable to the
veteran, he and his representative should
be furnished with a Supplemental
Statement of the Case and given an
opportunity to respond.
Then, if indicated, this case should be returned to the Board
for the purpose of appellate disposition. The veteran has
the right to submit additional evidence and argument on this
matter. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This appeal must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).